Pennsylvania Amends Anti-Stalking Law; Removes ‘Labor Dispute’ Exemption

Iron Workers logoStalking is ugly behavior. By intent, it inflicts fear of violence upon another person or persons. And frequently it is a prelude to actual violence. Yet in a number of states, such behavior is protected under law if it can be justified as promoting one’s interests in a labor dispute. Pennsylvania, to its credit, is no longer on that list. Last Thursday, November 5, Democratic Governor Tom Wolf signed a bill into law repealing a loophole that had given unions the right to stalk, harass and even use a “weapon of mass destruction” as an organizing tool. The new law, in the works for more than two years, applies to employers and unions alike. Yet on a practical level, its main intent is to discourage union terror at nonunion work sites. Predictably, the Pennsylvania chapter of the AFL-CIO opposes the measure.

Back in February 2013 and again in February 2014, Union Corruption Update documented acts of assault, threats, harassment, vandalism and arson against nonunion construction firms and workers in the Philadelphia area. The articles were based on research by Jillian Kay Melchior, a fellow at the Alexandria, Va.-based Franklin Center for Government and Public Integrity. Construction unions, especially Iron Workers Local 401, had put together goon squads who stalked and often assaulted nonunion contractors and workers at building sites or vandalized property. The business manager of the Greater Philadelphia Building Trades Council rationalized the violence and property destruction this way: “One person’s harassment is another person’s free-speech exercise. Life is tough in Philadelphia, as it is in any urban area.”

The feds, at least, weren’t buying this line. Last February, ten members of Local 401 were indicted in federal court on racketeering, arson and other charges. The evidence appeared damning. According to the FBI: “(B)usiness agents would approach construction foremen at those work sites and imply or explicitly threaten violence, destruction of property, or other criminal acts unless union members were hired.” The ringleader, Joseph Dougherty, eventually would be convicted for acts of arson and extortion. He was sentenced this July to 230 months in prison and ordered to pay more than $558,000 in restitution. Yet this activity, argued Melchior, represents only a small portion of the total picture. Much of the explanation, ironically, lay in labor law. At the federal level, the Norris-LaGuardia Act of 1932 makes it difficult for an employer to obtain an injunction against union organizers from trespassing on or adjacent to the employer’s property. And a misguided 1973 U.S. Supreme Court decision, U.S. v. Enmons, gives union officials and members leeway in committing acts of violence in the course of interstate commerce if they can demonstrate “legitimate” economic objectives.

It was at the state level, however, where the legal roadblocks have been strongest. Pennsylvania had been one of several states granting an exemption from criminal statutes against stalking or harassment if such activity takes place in the context of a labor dispute. In the summer of 2012, the Workforce Freedom Initiative, a project of the U.S. Chamber of Commerce, published a report, “Sabotage, Stalking & Stealth Exemptions: Special State Laws for Labor Unions,” that shed light on the issue. Pennsylvania and Illinois provided broad exemptions. In the case of Pennsylvania, prohibitions against stalking and related behavior “shall not apply to conduct by a party to a labor dispute.” In the case of Illinois, such behavior is exempt from prosecution if related to “any controversy concerning wages, salaries, hours, working conditions or benefits…the making or maintaining of collective bargaining agreements, and the terms to be included in those agreements.” California and Nevada also had exemptions, though they applied only to picket lines.

In Pennsylvania, union leaders were quick to denounce the report. “The very fact they (the authors) are trying to bring attention to it tells me that they are ready to go after workers again,” said state AFL-CIO President Richard Bloomingdale. At first, Bloomingdale had denounced the report as a “fraud” that “falsely claims union members are exempted from laws governing certain types of criminal activities.” Yet when the Workforce Freedom Initiative posted the statute on its website, he changed his tune. In a media interview, he admitted that the AFL-CIO had lobbied for those very exemptions. He remained adamant, however, that the real problem was “union-busting” corporations. The exemptions for stalking, harassment and threats of the use of a weapon of mass destruction (e.g., a bomb), Bloomingdale insisted, were simply protections for vulnerable workers against predatory employers.

Actually, the predators in this case were union men. In one case, a Local 401 official, business manager Edward Sweeney, was arrested in March 2013 for allegedly hurling obscenities at a female executive of a development company, pinning her against a counter, and saying “Bang, bang, bang,” while mimicking a gun motion with his hands. He was charged with harassment, assault and making terroristic threats. Yet a municipal judge, Charles Hayden Jr., having heard the defense’s invocation of the state’s labor dispute exemption, dismissed the charges. This was just a couple months prior to the handing down of federal indictments in February 2014 against Sweeney and nine other local members. A superseding indictment that July would follow. Two Local 401 members, Sean O’Donnell and William Gillin, pleaded guilty two months later. Local boss Joseph Dougherty was found guilty by a jury in January of this year on racketeering, vandalism and other charges.

A number of Pennsylvania lawmakers, meanwhile, had come to realize that state law had to change. In April 2013, Rep. Ron Miller, R-York, introduced a measure to close the loophole. “The time has come for Pennsylvania to stop condoning actions that would be illegal under any other circumstances simply because they are performed in conjunction with a labor dispute,” the bill read. Belatedly, in March 2014, the state House of Representatives passed the measure by a 115-74 vote. Enactment looked like a sure bet, especially given that Republican Gov. Tom Corbett had vowed to the sign the bill. But the Senate version of the bill contained language different enough to invite suspicions that the old ways would continue. “The Senate’s exemption is a little ambiguous,” said Miller the following month. “There are some concerns as far as what it means, how it could be interpreted, and whether it undoes the bill altogether.” The discrepancies between the two bills were wide enough to preclude action for the rest of the year.

That November, Governor Corbett lost his re-election bid to Democratic challenger Tom Wolf, who is more aligned with the union view. Yet with the Republicans retaining their majorities in both houses of the legislature, a second effort would happen soon enough. Rep. Ron Marisco, R-Dauphin, sponsored the Labor Anti-Injunction Act, also known as Bill 874, removing the labor dispute exemption for stalking, harassment and threats of use of a weapon of mass destruction. The House in April passed the bill, this time by a 109-84 margin. The Senate, after considerable delay, approved the bill on October 21 by 30-18. On November 5, Governor Wolf signed it. Striking a conciliatory note, he stated: “I believe it is important to allow men and women to come together and have their voices heard. I also believe that any form of harassment by employees or employers is unacceptable.” True to form, state AFL-CIO President Richard Bloomingdale termed the law “a solution to a problem that doesn’t exist,” while Secretary-Treasurer Frank Snyder denounced it as “silencing our voices.” At this point, it would be hard to take such denunciations seriously.

Stalking can cause real trauma. And it isn’t just controlling estranged spouses or boyfriends/girlfriends who engage in it. Unions know that fear of violence is a powerful inducement to get others to do business their way. Union Corruption Update over the years has exposed terror campaigns waged by Operating Engineers Local 17 (Buffalo, N.Y.), Laborers Local 91 (Niagara Falls, N.Y.), International Longshore and Warehouse Union Locals 4 and 21 (Washington State), and certain locals across the U.S. that compile and enforce ‘scab lists.’ Such criminal activity, never that easy to prosecute, is even harder if legally protected. The closing of the Pennsylvania ‘labor dispute’ loophole is a small step in combating union bullying, but it could loom large if lawmakers elsewhere took similar action.

Related:

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